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Social Security income shouldn't be considered in restitution orders

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Dealing with an issue of first impression, the Indiana Court of Appeals has ruled that Social Security income must be excluded when considering a defendant’s ability to pay restitution.

The appellate court has held that Social Security proceeds can’t be used to satisfy a civil judgment, but had yet to rule on the issue in a criminal matter. Rebecca Kays was ordered to pay nearly $1,500 to her neighbor following a misdemeanor battery conviction. The amount was based on the neighbor’s hospital bill and the court didn’t adequately consider Kays’ ability to pay. Kays’ counsel had argued that she only received $674 a month in Social Security benefits and was disabled and couldn’t work.

The judges reversed, finding the trial court didn’t do enough to inquire into Kays’ ability to pay. Sua sponte, the appellate court addressed whether 42 U.S.C.A. Section 470(a) precludes the trial court from considering SSI in determining her ability to pay restitution.

The judges looked to the Social Security Administration’s Program Operations Manual System, which says that these benefits aren’t subject to certain situations, including “other legal process,” and turned to other jurisdictions that had ruled on the matter to decide the benefits can’t be considered when ordering restitution.

“This approach comports with the purpose of social security benefits, which is to ‘assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual,’” wrote Judge Melissa May in Rebecca D. Kays v. State of Indiana, No. 42A05-1007-CR-504.

The appellate court ordered the trial court to ignore Kays’ SSI when determining her ability to pay, and also sua sponte asked the lower court to consider whether it needs to recalculate the neighbor’s damages. The neighbor submitted a hospital bill for nearly $1,500, but the court didn’t inquire as to how much the neighbor actually paid out of pocket and how much her insurance may have paid.

The judges believed the reasoning from Stanley v. Walker, 906 N.E.2d 852, 857 (Ind. 2009), should be applied to criminal restitution orders to ensure that victims are compensated only for their actual loses. The lower court should determine whether the evidence submitted at trial included other documentation or testimony regarding the neighbor’s “actual cost” and if so, to recalculate her damages prior to assessing what amount Kays is able to pay, wrote Judge May.

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  1. Living in South Bend, I travel to Michigan a lot. Virtually every gas station sells cold beer there. Many sell the hard stuff too. Doesn't seem to be a big deal there.

  2. Mr. Ricker, how foolish of you to think that by complying with the law you would be ok. Don't you know that Indiana is a state that welcomes monopolies, and that Indiana's legislature is the one entity in this state that believes monopolistic practices (such as those engaged in by Indiana Association of Beverage Retailers) make Indiana a "business-friendly" state? How can you not see this????

  3. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  4. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  5. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

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